July 22, 2019

How Local Stakeholders in the Tampa Bay Nitrogen Management Consortium Solved Tampa Bay’s Nitrogen Pollution Problem

Travis Moore Hearne

How Local Stakeholders in the Tampa Bay Nitrogen Management Consortium Solved Tampa Bay’s Nitrogen Pollution Problem

The Tampa Bay Nitrogen Management Consortium (NMC), a unique and innovative local decentralized stakeholder organization overseen by the Tampa Bay Estuary Program, has achieved remarkable environmental successes with national implications. The NMC, formed in 1998 to address nutrient over-enrichment in Tampa Bay, is a public-private partnership consisting of government regulators at the local, state, and federal levels; other local governments and agencies; utilities; landowners; and private industries. The NMC’s central achievements have been to determine what standard should be used to measure nutrient pollution in Tampa Bay and to conduct dispersed and widespread efforts to keep the Bay within those thresholds. So long as the NMC membership provides this “reasonable assurance” that the problem is being adequately addressed, the Environmental Protection Agency (EPA) and the Florida Department of Environmental Protection (FDEP) need not take separate independent action to crack down on nutrient pollution.

During the four decades between 1950 and 1990, nutrient pollution led to decimation of as much as 50 percent of seagrass in the Bay. Seagrass acreage declined from 40,420 acres in 1950 to just over 20,000 in 1982. Much of this loss was a result of nitrogen loading and excess phytoplankton growth. Prior to 1998, the Tampa Bay Estuary Program and its local government partners implemented a long-term plan to restore seagrass acreage in Tampa Bay to 95 percent of levels observed in 1950. This nascent coalition would go on to become the current NMC.

Due in great part to the efforts of the NMC, current seagrass acreage in Tampa Bay—41,655 acres—exceeds both the recovery goal of 38,000 acres and the 1950 benchmark of 40,420 acres, despite significant population increase in the Bay Area. NMC member efforts have also led to drastically reduced Total Nitrogen (TN) loading into the Bay: in 1976, an estimated 15 pounds/year per capita of nitrogen entered the Bay; as of 2016, that figure is below 4.

Powering the NMC success story is the cooperative federalism of the Clean Water Act (CWA), which captures the benefits of decentralization while avoiding the costs by creating a special localized role for organizations situated at the intersection of local communities, state governments, and federal mandates. The CWA essentially devolves authority in a downward cascade that preserves a space in which organizations like the NMC can flourish: at the top are a collection federal mandates embodied in the CWA (prohibition of water pollution, water quality assessment, and reporting requirements). Paired with these mandates are remedial tools (Total Maximum Daily Loads, reporting requirements, water quality standards, and the NPDES permitting system), which may be handed off to state entities to hand off in turn to local authorities. Meanwhile, EPA preserves its authority to conduct ongoing monitoring and evaluation of those parties’ activities.

This model also fosters proactive, voluntary remediation activities. Since sources of nutrient pollution vary by geography, local actors have both a vested interest in maintaining water quality in their locale and the tools to fight water pollution using local influence on regional causes. This comports closely with Hayekian analysis of regulation and its focus on information economics: a local effort by local actors to assess local conditions can utilize particularized knowledge about local conditions that is dispersed across myriad individuals.  Perhaps the most prominent instance of this phenomenon is the difficulty of conducting both scientific analysis of the impairment of water bodies and an investigation into the localized causes of nutrient pollution. The EPA lacks the resources to conduct the type of extensive analyses of local conditions that local scientific teams have undertaken. This approach allows environmental regulators to take advantage of a sort of "crowdsourcing” of both scientific research into the conditions of watersheds and economic knowledge of local sources of pollution. There is also a communitarian aspect to the process that helps mitigate what author Neil Gunningham describes as a “culture of regulatory resistance” that may develop when the regulated community adopts an adversarial approach to the regulator. When regional neighbors come together to implement mitigation and remediation efforts, this fosters more collaboration and less conflict and assuages the need for expensive and adversarial regulatory interventions. Regulated parties will feel that discharge allocations are more equitably distributed when those allocations are determined collaboratively than when they are perceived as decreed by a distant central authority.

A more localized approach to controlling nutrient pollution also puts at regulators’ disposal municipal tools that are not available to federal regulators. Local and municipal governments are vested with the wide-ranging police power, which permits land use regulations that are often utilized to solve environmental problems. In recent years, states and local governments have even begun to implement environmental regulations that are more stringent than federal floors. These local tools can open the door to a variety of innovative approaches like water quality credit trading (WQCT), which functions as a “cap and trade” program by which dischargers who can more efficiently reduce discharges may do so and sell their credits to others for whom similar reductions would be more expensive. The NMC’s allocation framework could function in the future as the basis of a WQCT program.    

The NMC is a model of what Gunningham describes as “The New Environmental Governance.” This model is essentially localist in nature and represents a shift toward local action and decision making. Gunningham identifies several characteristics of this approach to environmental regulation: “participatory dialogue and deliberation, devolved decision-making, flexibility rather than uniformity, inclusiveness, transparency, institutionalized consensus-building practices, and a shift from hierarchy to heterarchy.” The NMC exhibits each of these characteristics. The model encourages participatory dialogue and deliberation through its voluntary framework. NMC meetings are attended by representatives who craft documents and submittals to regulators collaboratively. The legal framework sustaining the NMC devolves decision-making from centralized regulatory bodies like the EPA and FDEP to a collaborative body comprised of local stakeholders. The NMC permits regulatory flexibility, as stakeholders may innovate their own methods of achieving desired discharge reductions and may renegotiate or exchange their allocations amongst themselves. The NMC is built on inclusivity; a diverse group of stakeholders faces the same incentives to participate, drawing new members into the organization. The eclectic participation in the consortium attests to its inclusivity. The NMC’s operation is fully transparent; its meetings are public, as are the documents it produces, discusses, and submits. The NMC institutionalizes consensus-building practices with its deliberative democratic approach to environmental governance. The NMC partners harness the incentives of maintaining local regulatory control, improving water quality, and maximizing the optics of action to achieve consensus and compliance. The NMC is a veritable model of the shift from hierarchy to heterarchy; though a significant degree of hierarchy remains in the regulatory framework (EPA may intervene should water quality improvements fail to materialize), federal micromanagement is greatly reduced, leaving a heterogeneous group of stakeholders “driving the bus” on at least this narrow regulatory issue.

The NMC showcases the potential local governance and public-private partnerships have to rectify difficult and complex environmental problems. Regulators at the federal and state level do well to develop regulatory frameworks that both preserve the optimum level of oversight and promote shifting the regulatory burden to local actors, who are better positioned to study local ecosystems in detail and to build coalitions that involve locals in efforts to mitigate environmental problems. Local stakeholders do well to involve themselves proactively in environmental solutions. Local stakeholders in watersheds threatened by nutrient impairment should consider the NMC’s approach a model and should consider developing plans similar to the NMC’s in jurisdictions where such plans are available (as they are throughout Florida). The future, hopefully, will see a proliferation of similar approaches throughout the state and the country to continue to improve the nation’s waters and mitigate nutrient pollution.

    Travis Moore Hearne

    Travis Moore Hearne is a May 2019 graduate of Stetson University College of Law, where he was a Biodiversity Fellow at Stetson’s Institute for Biodiversity Law and Policy, an associate of Stetson’s Moot Court Board, and a senior associate of the Stetson Law Review. He won the 2019 Outstanding Local Government Law School Student Award from the Florida Bar’s City County, and Local Government Section and is currently a law clerk at Mechanik Nuccio Hearne & Wester in Tampa, Florida.